P & C Lighting Center

National Labor Relations Board - Board Decisions

Feb 26, 1991

301 N.L.R.B. 828 (N.L.R.B. 1991)

828
301 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s finding that the charge was not time-barred under
Sec. 10(b) of the Act, we find it unnecessary to pass on his conclusion that
the Respondent fraudulently concealed the fact that employees performing bar-
gaining unit work were employed after November 1, 1987, in light of his find-
ing that the Union clearly did not have notice that the Respondent employed
such employees until after commencement of the 10(b) period. See, e.g., Walk-
er Construction, 297 NLRB 746 (1990).
2 Interest to be computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
3 We shall modify the recommended Order to provide that employees be re-
imbursed for any expenses they incurred by virtue of the Respondent’s unlaw-
ful failure to make trust fund contributions. See Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980). Additionally, we shall modify the recommended
Order to cover any individuals who were denied opportunity to work for the
Respondent because of the Respondent’s unlawful refusal to continue using the
hiring hall. Determination of whether such individuals exist is left to the com-
pliance stage of this proceeding. See Viola Industries, 286 NLRB 306, 308
fn. 10 (1987), and Rappazzo Electric, 281 NLRB 471, 483 (1986). See also
W. E. Colglazier, Inc., 289 NLRB 1219 (1988).
P & C Lighting Center, Inc. and International
Brotherhood of Electrical Workers Local 139
Annuity, Welfare, Pension and Education
Funds. Case 3–CA–14751
February 26, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 27, 1990, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party filed exceptions, a supporting brief,
and an answering brief, and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegated
its authorty in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions,1 to modify the remedy2 and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, P &
C Lighting Center, Inc., Hornell, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Make whole employees covered by the 1985–
1990 agreement as well as hiring hall applicants who
should have been employed for any losses they may
have suffered as a result of the Respondent’s failure to
adhere to the contract since November 2, 1987, in the
manner set forth in the remedy section of the judge’s
decision, including reimbursing employees any ex-
penses ensuing from the Respondent’s unlawful failure
to make required trust fund contributions.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT, during the term of a collective-bar-
gaining agreement, repudiate that agreement with
Local 139, International Brotherhood of Electrical
Workers, as the exclusive collective-bargaining rep-
resentative of our employees covered by the agree-
ment.
WE WILL NOT refuse to adhere to our 1985–1990
collective-bargaining agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make our employees, as well as hiring hall
applicants who should have been employed, whole,
with interest, for any losses they may have suffered as
a result of our failure to adhere to the 1985–1990 con-
tract with the Union, since November 2, 1987, and WE
WILL reimburse employees for any expenses ensuing
from our failure to make trust fund contributions.
WE WILL whole the International Brotherhood of
Electrical Workers Local 139 Funds for any losses
they may have suffered as a result of our failure to ad-
here to the 1985–1990 contract with the Union, since
November 2, 1987.
P & C LIGHTING CENTER, INC.
Michael J. Israel, Esq., for the General Counsel.
Joseph J. Steflik Jr., Esq. (Twining, Nemia, Hill & Steflik,
Esqs.), of Binghamton, New York, for the Respondent.
James R. LaVaute, Esq. (Blitman & King, Esqs.), of Syra-
cuse, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on December 30, 1988, by the International
Brotherhood of Electrical Workers Local 139 Annuity, Wel-
fare, Pension and Education Funds (the Charging Party), a
complaint was issued against P & C Lighting Center, Inc.
(the Respondent), by Region 3 of the National Labor Rela-
tions Board (the Board) on February 10, 1989.
The complaint, as amended, alleges that Respondent (a)
signed a letter of assent delegating its collective-bargaining
authority to an employer association and is therefore bound
to the most recent prehire collective-bargaining agreement
829P & C LIGHTING CENTER
1 Respondent states that it also employed three other employees at that time.
This will be discussed, infra.
and (b) has failed and refused to adhere to the terms and
conditions of that contract and has thereby repudiated it. The
complaint alleges that Respondent has failed and refused to
bargain with Local 139, International Brotherhood of Elec-
trical Workers (the Union) in violation of Section 8(a)(5) of
the Act.
The Respondent’s answer denied the material allegations
of the complaint and alleged certain affirmative defenses
which will be addressed, infra.
On April 26 and 27, 1989, a hearing was held before me
in Hornell, New York. On the entire case, including my ob-
servation of the demeanor of the witnesses and after consid-
eration of the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, having maintained an office and place of
business at Airport Road, Hornell, New York, is and has
been continuously engaged therein in the business of pro-
viding and performing residential, commercial, and industrial
electrical wiring, installation, repair and maintenance serv-
ices, and related services.
Respondent stipulated that during the calendar year ending
December 31, 1988, in the course and conduct of its business
operations, it purchased and received at its Hornell facility
products, goods, and materials valued in excess of $50,000
from other enterprises, including Westinghouse Supply and
Gersh Electric, located within New York State, which other
enterprises have received the products, goods, and materials
directly from outside New York State.
Respondent has further admitted as follows: That certain
employers have signed a ‘‘letter of assent-A’’ delegating
their collective-bargaining authority to the Southern Tier
Chapter of the National Electrical Contractors Association
(the Association). During the calendar year ending December
31, 1988, in the course and conduct of their business oper-
ations, those certain employers collectively purchased and re-
ceived at their facilities located within New York State,
products, goods, and materials valued in excess of $50,000
from other enterprises, which other enterprises have received
the products, goods, and materials directly from points out-
side New York State. It being understood that the validity of
the Respondent’s ‘‘letter of assent-A’’ is in issue in this pro-
ceeding.
I find that the Board has jurisdiction over Respondent. Re-
spondent has admitted facts which support a finding that Re-
spondent is engaged in commerce within the meaning of the
Act based on an indirect inflow standard. Siemons Mailing
Service, 122 NLRB 81, 85 (1958), in which the Board stated
that jurisdiction would be asserted over all nonretail enter-
prises which have indirect inflow of at least $50,000—enter-
prises which purchase goods which originated outside the
Employer’s State but which it purchased from a seller within
the State who received such goods from outside the State.
Based on this standard, Respondent stipulated that it received
goods valued in excess of $50,000 from Westinghouse and
Gersh, both of which are located within New York State, but
which had received the goods directly from outside New
York State.
In addition, in Stack Electric, 290 NLRB 575, 576 (1988),
the Board dealt with similar issues to those presented here,
including an identical letter of assent-A. The Board, in find-
ing that the respondent there, as here, was primarily engaged
in the building and construction industry, noted that it had
signed a letter of assent. The Board stated:
We conclude that the delegation of bargaining authority
contained in those Letters of Assent is sufficient to war-
rant the assertion of jurisdiction because it indicates the
individual Respondent’s intent to be bound by group
action, rather than individual bargaining.
By throwing in their lot with the multiemployer asso-
ciation, at least for purposes of negotiating a collective-
bargaining agreement, the Respondents joined forces
with a group in an activity that has an indisputable im-
pact on commerce so far as the Act we administer is
concerned.
Inasmuch as I find, infra, that Respondent is bound by the
letter of assent which it signed, I further find that it joined
forces with the Association and jurisdiction over the Re-
spondent is therefore warranted.
Respondent has admitted and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union and the Association are parties to a collective-
bargaining agreement which runs from June 1, 1985, through
May 31, 1990. It contains the following provisions:
It shall apply to all firms who sign a Letter of Assent
to be bound by this Agreement. (First Clause)
The Employer recognizes the Union as the exclusive
representative of all its employees performing work
within the jurisdiction of the Union for the purpose of
Collective Bargaining in respect to rates of pay, wages,
hours of employment and other conditions of employ-
ment. (Section 2.02)
The Union shall be the sole and exclusive source of re-
ferrals of applicants for employment. (Section 4.02)
Employers subject to the agreement are required to submit
monthly reports to the Charging Party showing the numbers
of employees employed, the amount of hours worked and
wages earned, and the sums submitted to the Charging Party.
On April 1, 1981, Respondent employed electrician Stan-
ley Ambuski.1 At that time, Respondent’s president, Robert
Panter, signed ‘‘letter of assent-A.’’
The document states:
In signing this letter of assent, the undersigned firm
does hereby authorize Southern Tier Chapter of the Na-
tional Electrical Contractors Association as its collec-
tive-bargaining representative for all matters contained
in or pertaining to the current approved inside labor
agreement between the Southern Tier Chapter of the
National Electrical Contractors Association and Local
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The letter of assent also contains the following:
In accordance with Orders issued by the U.S. District Court for the Dis-
trict of Maryland on October 10, 1980 in Civil Action HM-77-1302 if
the undersigned employer is not a member of the [Association], this letter
of assent shall not bind the parties to the provision in the above men-
tioned agreement requiring payment into the National Electrical Industry
Fund unless the above Orders of Court shall be stayed, reversed on appeal
or otherwise nullified.
No evidence has been presented regarding this paragraph, and it does not
appear to be in issue here. It should be noted that Respondent, which is not
and has not been a member of the Association, had been sued for failing to
make payments to the National Employees Benefit Fund, and not the National
Electrical Industry Fund.
Union 139, IBEW. This authorization, in compliance
with the current approved labor agreement, shall be-
come effective on the first day of April, 1981. It shall
remain in effect until terminated by the undersigned
employer giving written notice to the Southern Tier
Chapter of the National Electrical Contractors Associa-
tion and to the Local Union at least 150 days prior to
the then current anniversary date of the aforementioned
approved labor agreement.2
There is no evidence that Respondent had exercised its
right to terminate the Association’s authority to bargain on
its behalf.
Charles Patton, the Union’s business agent and financial
secretary, testified that the contract covers all employees
doing electrical work. The classifications set forth in the con-
tract include probationary apprentices, indentured appren-
tices, indentured apprentices, and journeymen.
From at least 1984, Respondent became delinquent in its
payment obligations to the Charging Party. On May 30,
1986, Panter signed a stipulation for entry of judgment, in
which he agreed that certain moneys were due to the Funds,
and agreed to pay them. The stipulations contains the fol-
lowing statements, sworn to by Panter:
That the defendant Corporation is bound to a collective-
bargaining agreement between Southern Tier Chapter of
the National Electrical Contractors Association and
Local 139 IBEW.
That pursuant to said collective-bargaining agreement,
the defendant Corporation agreed to report to the Local
139 Funds the number of hours worked by each of its
employees covered under the said agreement, and
agreed to make certain contributions and deductions to
the Local 139 Funds and the Union for each hour each
of the employees worked.
In addition, Panter testified that he has had collective-bar-
gaining agreements with the Union continuously since 1981,
and that at the time of the hearing he had a contract with
the Union which is still in effect.
Union official Patton testified that, to his knowledge,
Ambuski was the only employee employed by Respondent in
November 1987. From 1981 to November 1987, Respond-
ent’s monthly reporting forms listed only Ambuski’s name.
In about November 1987, Ambuski told Patton that he was
quitting his job with Respondent because Respondent was
not current in its payments to the fringe benefit funds, and
that Ambuski believed that he might lose his health insur-
ance coverage. In fact, a lawsuit was in progress at that time
to collect sums of money owed to the Funds.
After Ambuski left Respondent’s employ in about Novem-
ber 1987, Respondent did not notify the Union that it was
employing any employees performing electrical work, did not
submit any monthly reporting forms to the Charging Party,
and made no requests for employees from the Union pursu-
ant to the exclusive hiring hall provisions of their contract.
The Union argues that since November 1987, Respondent
has employed employees covered by the collective-bar-
gaining agreement, but has not adhered to the terms of the
contract by not paying its employees the contractual wages
and benefits, submitting monthly reports, or making pay-
ments to the Funds.
The evidence demonstrates that Respondent employed cer-
tain employees since November 1987. However, Respondent
disputes whether they are covered by the contract. It asserts
that certain of the employees were laborers and therefore not
included within the contract. It further argues that at various
times, only one electrician was employed by it, and therefore
a one-person bargaining unit cannot be made the subject of
this proceeding.
During the period at issue, Respondent performed exten-
sive electrical contracting services for various organizations
including Crowley Foods, Inc., Ponderosa Restaurant, and St.
Ann’s Church and School. The prices charged by Respondent
for those jobs were $214,000 for Crowley, $49,000 for Pon-
derosa, $7,000 to $10,000 for St. Ann’s Church, and $6,000
for St. Ann’s School.
In about July or August 1988, Patton noticed an article in
a Hornell newspaper which said that Respondent’s wholesale
and retail divisions would be sold, but that it would retain
its contracting business. Panter was quoted as saying that Re-
spondent is ‘‘the largest electrical contractor in the area and
has been for many years.’’
Patton asked John Price, the Union’s recording secretary,
to try to determine if Respondent was performing electrical
contracting work. Price discovered that Respondent was em-
ployed at Crowley Foods, Inc., a dairy establishment. In
about October or November, Price visited the site and was
told that Respondent was performing electrical work there.
On December 19, he again visited the site and spoke to Jody
Brizzee, an employee of Respondent. Price identified himself
and told Brizzee that Respondent had a contract with the
Union to secure electricians from the Union. Brizzee identi-
fied himself as an electrician, and said that four other elec-
tricians were employed on that job: Michael D’Antonio,
Wesley Merrick, Lee Knapp, and Roger Price.
On January 13, 1989, Patton and Price visited the jobsite.
They spoke to Brizzee and D’Antonio. D’Antonio said that
he was doing electrical work for many years. Brizzee asked
about the apprenticeship program, and Patton asked him to
submit an application.
Brizzee testified that he has been employed by Respondent
for about 1 year. He stated that he has worked at Crowley
Foods, installing conduits, which is the pipe through which
electrical wire is placed, pulling wires, which is the process
of putting wires through the conduit and through walls or
partitions, and installing light fixtures. He also installs elec-
trical switches, receptacles, and junction boxes. He connects
wiring to the switches, receptacles, and junction boxes. He
stated that D’Antonio, Merrick, and Price worked on that job
with him, adding that Merrick and Price did the same type
of work he did. Brizzee also testified that D’Antonio was the
831P & C LIGHTING CENTER
main electrician on that job, who made connections involving
live wires and main switches. D’Antonio also helped run
conduit, pull wire, and helped install fixtures. D’Antonio
used the same tools Brizzee did, and did the same type of
work Brizzee performed.
Brizzee stated that the installation work that he performed
consisted of him taking the conduit, switch covers, and junc-
tion boxes and mounting them on the wall. He runs wires
to those receptacles or boxes. He also mounts light fixtures,
and makes the electrical connections between a series of fix-
tures to the main service box. However, he does not make
the connection in the main service box with the live elec-
tricity, which is done by the electricians.
Brizzee estimated that one-third to one-half of his time on
that job consisted of carpentry work including welding,
building wooden forms for concrete, and masonry work. He
welded duct work and brackets to hold conduits and junction
boxes. The concrete work was necessary in order to build
platforms for the electrical transformers and other equipment.
He also had to patch walls where he had made holes to fit
the conduit. Brizzee also carries the electrical material to the
jobsite, either from the shop, or from an area on the site
where it has been placed, to where the employees are work-
ing.
Brizzee testified that he considers himself a laborer, not an
electrician, because he does more installation work than ac-
tual connections, and the nature of his duties such as weld-
ing, concrete, and carpentry does not involve electrical work.
Brizzee further testified that on jobs performed at St.
Ann’s Church and School the great majority of his time was
spent doing electrical installation work. At the Ponderosa
Restaurant, all of his time was spent on electrical materials.
Respondent’s president, Panter, testified that Brizzee’s tes-
timony was fairly accurate, adding that his job, as a laborer,
was to assist the electrician in the work he testified to. Panter
stated that he disagreed with Brizzee’s estimates of time
spent on certain activities, however he conceded that Panter
was not present at all times at all projects on which Brizzee
worked.
Brizzee earned $4.25 per hour when he began work in
January 1988, and at the time of the hearing, according to
the payroll records, earned $5 per hour. He testified that he
pays for half of his medical insurance, and receives no other
benefits.
Regarding the other employees, Respondent’s payroll
records disclose as follows:
Anthony Cappadonia, who Respondent concedes is an
electrician, became employed in July 1987. In November
1987 he earned $7.75 per hour, and at the time he left Re-
spondent’s employ in October 1988, he earned $8.50.
Michael D’Antonio, who Respondent also asserts is an
electrician, was hired by Respondent in August 1983. He
earned $9.25 per hour from November 1987 to April 1989.
Lee Knapp, who Respondent identifies as a laborer, began
his employ in March 1987. In November 1987, he earned
$6.50 per hour, which was his wage rate in December 1988.
Wesley Merrick, called a laborer by Respondent, began
work in July 1988. In November 1987, he earned $4.50 per
hour. In April 1989, his wage rate was $5.
Roger Price, a laborer according to Respondent, earned
$5.25 in November 1987. In April 1989, he earned $6.
The wage rates set forth above, are below those for elec-
tricians and helpers set forth in the 1985–1990 collective-bar-
gaining agreement.
B. Analysis and Discussion
1. Respondent’s obligations under the collective-
bargaining agreement
The complaint alleges that ‘‘since on or about a date sub-
sequent to November 1, 1987 . . . Respondent has failed and
refused to adhere to the terms and conditions of the most re-
cent pre-hire collective-bargaining agreement [1985–1990]
and has thereby repudiated that agreement.’’
The provisions of Section 8(f) apply only to ‘‘an employer
engaged primarily in the building and construction industry.’’
The Board has defined that industry as one in which the
work involves ‘‘the provision of labor whereby materials and
constituent parts may be combined on the building site to
form, make or build a structure.’’ Teamsters Local 83 (Stan-
ley Matuszak), 243 NLRB 328, 330 (1979). There is no
question here that Respondent is such an employer.
Section 8(f) of the Act provides, in relevant parts:
It shall not be an unfair labor practice . . . for an em-
ployer engaged primarily in the building and construc-
tion industry to make an agreement covering employees
engaged . . . in the building and construction industry
with a labor organization of which building and con-
struction employees are members . . . because (1) the
majority status of such labor organization has not been
established under the provisions of section 9 of this Act
prior to the making of such agreement.
Prior to the Board’s change in the law governing 8(f)
agreements, it held that an 8(f) agreement may be repudiated
by either party, at any time, for any reason, and cannot be
enforced through Section 8(a)(5) of the Act. The law at that
time also provided that an employer could test the union’s
majority status by unilaterally repudiating the agreement and
litigating the union’s status in an 8(a)(5) refusal-to-bargain
proceeding.
In John Deklewa & Sons, 282 NLRB 1375 (1987), the
Board reversed its reliance on the earlier concepts, and set
forth new principles governing an 8(f) relationship, including
that (a) a collective-bargaining agreement permitted by Sec-
tion 8(f) shall be enforceable in an 8(a)(5) proceeding (b)
‘‘when parties enter into an 8(f) agreement, they will be re-
quired, by virtue of Section 8(a)(5) and Section 8(b)(3) to
comply with that agreement.’’ and (c) employers who are
party to 8(f) agreements are not free unilaterally to repudiate
such agreements.
Respondent’s president, Panter, admitted that he signed the
letter of assent in 1981, and has had continuous collective-
bargaining agreements with the Union since that time, and
indeed stated that at the time of the hearing, Respondent’s
contract with the Union was still in effect. Moreover, in May
1986, the stipulation executed by him stated that Respondent
was bound to a collective-bargaining agreement with the
Union.
The letter of assent signed by Panter provides that the au-
thorization given to the Association remains in effect until
written notice is given at least 150 days prior to the expira-
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As set forth above, legal proceedings were brought at various times in
order to require Respondent to pay certain sums which were in arrears.
4 In Deklewa, supra at 1385, the Board held that ‘‘single employer units will
normally be appropriate.’’ In this connection, I reject Respondent’s affirmative
defense that the Union does not represent a majority of its employees. Sec.
8(f) eliminates majority status as a prerequisite for signing a contract. In
Deklewa, the Board abandoned the old principles which permitted employers
to test the union’s majority status by unilaterally repudiating the agreement
and litigating the union’s status in an 8(a)(5) proceeding.
5 The fact that none of the ‘‘laborers’’ are enrolled in the Union’s appren-
ticeship program does not affect my finding here. Brizzee applied to that pro-
gram and was rejected because his background in mathematics was deemed
insufficient. However, Union Official Patton testified that Brizzee could still
be referred to employment by the Union as an indentured apprentice or helper.
tion of the then current agreement. There has been no evi-
dence that such notification has been given. Accordingly, Re-
spondent was bound to the 1981 collective-bargaining agree-
ment between the Association and the Union, and to all sub-
sequent agreements.
Under identical circumstances, the Board has found that
employers who voluntarily entered into 8(f) relationships
with a union by executing letters of assent, were bound to
the current collective-bargaining agreements with the Asso-
ciation, and in the absence of timely notification of with-
drawal from the Association, the Board has found, pursuant
to Deklewa, that the successor agreement was ‘‘binding, en-
forceable, and not subject to unilateral repudiation by the Re-
spondent.’’ Riley Electric Inc., 290 NLRB 374 (1988); City
Electric, Inc., 288 NLRB 443 (1988); Reliable Electric Co.,
286 NLRB 834 (1987).
I accordingly find and conclude that by failing to adhere
to the collective-bargaining agreement, Respondent has there-
by repudiated it and has violated Section 8(a)(5) and (1) of
the Act.
2. Respondent’s Defenses
Respondent asserts that it did not voluntarily enter into an
8(f) relationship with the Union. Respondent’s president,
Panter testified that in late March 1981, his company was
performing a 2-year job for the National Fuel Gas Company.
Joseph Clements, the Union’s business manager at that time,
told him that because Respondent was nonunion the Union
would picket the jobsite and shut it down unless he signed
the letter of assent. At that time, Panter had three electricians
and one laborer working at that jobsite. According to Panter,
he told Clements that neither he nor the employees were in-
terested in the Union. Clements was only interested in having
Stanley Ambuski become a member of the Union. He alleg-
edly did not seek membership for Ken Austin, because he
was due to retire shortly, or John DuPont, because he was
a ‘‘troublemaker.’’ Panter testified that Clements said that
Roy Berger, the laborer, would not qualify for the apprentice
program, and he similarly did not seek membership for him.
Clements did not testify.
Some doubt is cast on Panter’s testimony in this regard.
A letter from the Union dated April 17, 1980, was received
in evidence. It states as follows:
In regard to the meeting that was held Wednesday, Feb-
ruary 13, 1980, it was my understanding that you
would do the Beach Hill Pumping Station Job under
Local 139’s present agreement and that any additional
man power would be coming out of this Local. If this
is agreeable, please sign below and return to me and I
in turn will send you a copy. After July 1, 1980, I hope
we can get together and get a permanent agreement
signed.
The letter bears Panter’s signature. When shown this letter
he modified his testimony to state that the conversation with
Clements in which Clements threatened to shut the job may
have been held 1 year earlier, in February 1980, rather than
in March 1981.
Moreover, this allegation of coercion in signing the letter
of assent, occurring more than 6 months before the charge
here was filed, is beyond the 10(b) statute of limitations.
Stack Electric, supra at 586–587.
Respondent made contributions to the Charging Party’s
Funds and paid wages to Ambuski generally in accordance
with the terms of the collective-bargaining agreement be-
tween the Association and the Union.3 After Ambuski left
Respondent’s employ on about November 1, 1987, Respond-
ent ceased making any contributions, reporting any employ-
ees in its employ, and filing the required reports.
Respondent asserts that its ‘‘laborer’’ employees are not
properly includible in the unit of employees encompassed in
the collective-bargaining agreement. The complaint sets forth
the following employees as being an appropriate collective-
bargaining unit:
All journeymen and apprentice electricians employed
by Respondent . . . excluding all office clerical em-
ployees, and professional employees, guards and super-
visors as defined in the Act.4
Respondent argues that the practice in the Hornell, New
York area is to employ an electrician and a number of labor-
ers who assist the electrician. General Counsel argues that
the ‘‘laborers’’ are apprentices who perform electrical work,
and for whom Respondent was obligated to adhere to the
contract terms. I agree with General Counsel. Jody Brizzee
testified that he and the other ‘‘laborers,’’ Knapp, Merrick,
and Price, perform electrical work, including running conduit
and wires, mounting junction boxes, switches and recep-
tacles, and hanging and wiring fixtures together. Panter con-
ceded that with regard to certain of that work, they ‘‘assist’’
the electrician. This work is identical to the work which John
Price, a journeyman wireman electrician, testified that he
performs. Brizzee also testified that he performs concrete
work, such as building pads for transformers and other
equipment, welds brackets to support conduit, drills holes in
walls, and patches holes. Although this would not ordinarily
appear to be electrical work, Union Business Manager Patton
testified that it would be if it was related to electrical work
being performed. Moreover, such work encompasses only
part of his work.
It accordingly appears that Brizzee, Knapp, Merrick, and
Price are engaged in the work which apprentices in the elec-
trical industry normally perform. The collective-bargaining
agreement does not require that persons performing such
work spend all their time doing strictly electrical work. In-
deed, apprentices while doing such work are engaged in on-
the-job training.5
Moreover, it does not appear that Respondent was acting
in good faith in its assertion that it was not required to make
833P & C LIGHTING CENTER
6 I similarly find no validity to Respondent’s affirmative defense that the
Charging Party had no standing to file the charge. Sec. 102.9 of the Board’s
Rules and Regulations states that a charge may be filed by any person which
would, of course, include the Charging Party here.
any reports to the Union or the Charging Party because it
employed only one electrician, D’Antonio. The evidence es-
tablishes that from July 6, 1987, when conceded electrician
Cappadonia was hired, to October 28, 1988, when he quit,
Respondent employed both D’Antonio and Cappadonia. Nev-
ertheless, no reports were made as to Cappadonia’s employ-
ment. This finding is supported by Panter’s testimony that he
was aware that employees who were called ‘‘laborers’’
earned less money than those represented by the Union, and
such lower earnings made a ‘‘difference from a competitive
standpoint.’’
Respondent further argues that it currently employs one
electrician, Michael D’Antonio, who is a supervisor, and ac-
cordingly the Board may not certify a unit of only one em-
ployee. An analysis of the evidence concerning D’Antonio’s
supervisory status is unnecessary inasmuch as it is clear that
Respondent employs more than one employee. Respondent
employs four other employees—Brizzee, Knapp, Merrick,
and Price. Whether they are called ‘‘laborers,’’ as argued by
Respondent, or ‘‘apprentices,’’ as argued by General Coun-
sel, they are still employees, performing electrical work for
Respondent. Accordingly, I reject this argument of Respond-
ent. Moreover, although the Board may not certify a one-per-
son unit, such a unit may be lawfully recognized by an em-
ployer. As conceded by Respondent, although I make no
such finding, it recognized the Union in 1981 for a unit of
one employee—Stanley Ambuski.
Respondent further argues that the Board’s decision in
Stack Electric, supra, requires dismissal of the complaint. In
that decision, the Board found that the appropriate units con-
sist of ‘‘no more than a single employee,’’ and therefore the
employers had no obligation to bargain with the union. The
Board based its holding on its decision in D & B Masonry,
275 NLRB 1403, 1408 (1985), in which it stated:
It is settled that if an employer employs one or fewer
unit employees on a permanent basis that the employer,
without violating Section 8(a)(5) of the Act, may with-
draw recognition from a union, [and] repudiate its con-
tract with the union . . . without affording a union an
opportunity to bargain.
In Stack Electric, the Board found that in addition to the
owners of the firms, other individuals were employed only
intermittently. Here, however, Respondent’s payroll records
establish that its employees were full time, regular workers
who generally worked 40 hours per week and, in addition,
occasionally worked overtime. Moreover, the extensive na-
ture of the electrical work contracted by Respondent cer-
tainly required the services of regularly employed persons
who could perform such tasks. Accordingly, Stack Electric is
factually distinguishable from this case.
I also reject Respondent’s argument that the Board’s juris-
dictional dispute procedure is applicable here, pursuant to
which its assignment of ‘‘laborer’s’’ work to its unrepre-
sented employees is appropriate. Such a procedure is avail-
able only where a violation of Section 8(b)(4)(D) has been
alleged, and accordingly has no relevance here.6
Concluding Findings
The complaint alleges that since on or about a date after
November 1, 1987, Respondent failed and refused to adhere
to the terms and conditions of the most recent prehire collec-
tive-bargaining agreement between the Association and the
Union, and has thereby repudiated that agreement.
The evidence establishes that from November 1, 1987,
when electrician Stanley Ambuski left Respondent’s employ,
Respondent did not adhere to the terms and conditions of the
1985–1990 collective-bargaining agreement. The wages and
benefits provided to its employees who were covered by that
contract were inferior to those set forth in that agreement. In
addition, no required reports were made, and employees were
not obtained through the Union’s exclusive hiring hall.
I accordingly find and conclude that, as alleged in the
complaint, Respondent by its conduct alleged therein violated
Section 8(a)(5) and (1) of the Act.
The charge here was filed on December 30, 1988. Section
10(b) of the Act provides, in relevant part, that ‘‘no com-
plaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge.’’
Accordingly, pursuant to that section, a complaint could not
issue on any unfair labor practice which occurred prior to
June 30, 1988. However, the complaint states that the unfair
labor practices occurred on about November 1, 1987, and
General Counsel seeks a remedy from that date.
The 10(b) period begins to run when the ‘‘act’’ giving rise
to the unlawful conduct is known. Al Bryant, 260 NLRB
128, 135 fn. 19 (1982). The 10(b) period will not begin to
run, however, in cases where the respondent has fraudulently
concealed the facts from the injured party. In such cases, the
limitations period does not begin to run until the fraud is dis-
covered. O’Neill Ltd., 288 NLRB 1354 (1988); Burgess Con-
struction, 227 NLRB 765 (1977).
I believe that this case is an appropriate one for the appli-
cation of the ‘‘fraudulent concealment’’ rule. Union official
Patton credibly testified that he was not aware that Respond-
ent employed any employees other than Ambuski. When
Ambuski left the Respondent’s employ on November 1,
1987, he did not know of any other employees who would
be covered by the collective-bargaining contract with the
Union. This belief was reinforced by Respondent’s failure to
report the additional employees it employed at that time, in-
cluding electricians Cappadonia and D’Antonio and ‘‘labor-
ers’’ Knapp and Price, and any employees employed there-
after, as required by the contract it was bound to. This fraud-
ulent concealment of the true employment makeup at Re-
spondent caused the Union to erroneously believe that no
covered employees were working for the Respondent. It was
only on reading a newspaper article concerning Respondent’s
business 8 months after Ambuski left that union official Pat-
ton was alerted to the fact that Respondent may be employ-
ing employees covered by the contract. A timely investiga-
tion was made and the true facts were uncovered by the
Union.
Under these circumstances, it is appropriate that the 10(b)
period be tolled as of November 1, 1987.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
8 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All journeymen and apprentice electricians employed by
Respondent at its Airport Road, Hornell, New York facility,
excluding all office clerical employees, and professional em-
ployees, guards and supervisors as defined in the Act, con-
stitute an appropriate unit of the Respondent’s employees for
the purposes of collective bargaining under the Act.
4. By repudiating its 1985–1990 collective-bargaining
agreement with the Union on November 2, 1987, during the
term of the collective-bargaining agreement, the Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
5. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be required to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to make
whole, as prescribed in Ogle Protection Services, 183 NLRB
682 (1970), employees for any losses they may have suffered
as a result of the Respondent’s failure to adhere to the 1985–
1990 agreement between the Southern Tier Chapter of the
National Electrical Contractors Association and the Union
since November 2, 1987, with interest, as computed in Flor-
ida Steel Corp., 231 NLRB 651 (1977), and to make whole
the International Brotherhood of Electrical Workers Local
139 Funds for any losses they may have suffered as a result
of the Respondent’s failure to adhere to that agreement since
November 2, 1987. Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, P & C Lighting Center, Inc., Hornell,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of a collec-
tive-bargaining agreement from Local 139, International
Brotherhood of Electrical Workers, as the exclusive collec-
tive-bargaining representative of the Respondent’s employees
covered by the agreement.
(b) Refusing, from November 2, 1987, to adhere to its
1985–1990 collective-bargaining agreement with the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole employees covered by the 1985–1990
agreement, in the manner set forth in the remedy, for any
losses they may have suffered as a result of the Respondent’s
failure to adhere to the contract from November 2, 1987.
(b) Make whole the International Brotherhood of Electrical
Workers Local 139 Funds for any losses they may have suf-
fered as a result of the Respondent’s failure to adhere to the
contract from November 2, 1987.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Hornell, New York facility copies of the at-
tached notice marked ‘‘Appendix.’’8 Copies of the notice, on
forms provided by the Regional Director for Region 3, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient cop-
ies of the attached notice marked ‘‘Appendix’’ for posting by
Local 139, International Brotherhood of Electrical Workers,
if willing, in conspicuous places where notices to employees
and members are customarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.